Air Shields, Inc. v. Spears

• Decision Date: 18 October 1979
• Docket Number: No. 6026,6026
• Citation: 590 S.W.2d 574
• Parties: AIR SHIELDS, INC. and Southmore Hospital and Clinic, Inc., Appellants, v. Sherry SPEARS, Individually and as Next Friend of Russell Alan Spears, a Minor, Appellee.
• Court: Texas Court of Appeals

Page 574

590 S.W.2d 574

AIR SHIELDS, INC. and Southmore Hospital and Clinic, Inc., Appellants, v. Sherry SPEARS, Individually and as Next Friend of Russell

Alan Spears, a Minor, Appellee.

No. 6026.

Court of Civil Appeals of Texas, Waco.

Oct. 18, 1979.

Rehearing Denied Nov. 29, 1979.

Donald B. McFall and Richard A. Sheehy, Butler, Binion, Rice, Cook & Knapp, Houston, for Southmore Hospital and Clinic, Inc.

Donald R. Hallmark and Susan Crowley, Boswell, O'Toole, Davis & Pickering, Houston, for Air Shields, Inc.

Jim M. Perdue, Andrew L. Todesco and J. Richard Cheney, Miller, Gann & Perdue, Houston, for appellee.

E. P. Dee, Houston, guardian ad litem.

OPINION

McDONALD, Chief Justice.

This is an appeal by defendants Air Shields and Southmore Hospital from $1,173,334. judgment against them in favor of minor plaintiff Russell Alan (Rusty) Spears.

Sherry Spears as next friend of her minor son Rusty Spears sued Air Shields and Southmore for damages resulting from permanent blindness sustained by the minor plaintiff as a result of medical care rendered following his birth on April 27, 1970. Plaintiff had previously settled with the attending physicians for $100,000., expressly reserving his claims against all others.

Plaintiff alleged: Rusty was born in Southmore Hospital on April 27, 1970; was premature; of 32 weeks gestation period; weighed 2 pounds 3 ounces; that following birth he was placed under the care of Dr. Rothenberg who was covering for Dr. Doncaster who was out of town; that Rusty was immediately placed by the hospital personnel in an incubator which was designed, manufactured and sold by Air Shields; that the care of the infant remained in the hands of Dr. Rothenberg and the personnel of Southmore Hospital through May 5, when Dr. Doncaster returned; while in the incubator from April 27 to May 6, Rusty was administered oxygen of 32% To 40% On a continuous basis; resulting in his developing retrolental fibroplasia (RLF) which rendered him totally and permanently blind. Plaintiff further alleged: the amount and duration of oxygen administered through the incubator was determined by the physician, nurses and technicians in charge of his care, and in order to safely use the incubator they had to rely on their training as well as information supplied by Air Shields with the incubator; the incubator saves the life of many prematurely born infants by providing them supplemental oxygen, but supplemental oxygen can cause RLF and blindness in the premature infant; it was formerly believed that oxygen was safe if kept below 40%; but research in 1967 and 1968 determined there was no safe percent and that duration of exposure was also a factor in bringing about RLF; Air Shields sold the incubator to Southmore in 1968; Air Shields knew as of 1967 or 1968 that oxygen concentrations of 30% To 40% Could and would cause RLF if maintained for a sufficient period of time; and knew that infants being placed in incubators were developing RLF and being blinded; yet Air Shields failed and neglected to advise purchasers and users of its incubators of these facts. Plaintiff further alleged: Southmore through its medical staff knew of the foregoing but failed to adopt any procedure as a part of its nursing or pediatric unit to insure that no standing order for oxygen in quantities of 32% To 40% Were written or permitted to continue in effect in the absence of respiratory difficulty of the infant.

Plaintiff alleged Air Shields' failure to provide warning and Southmore's failure to have proper procedures were causes of Rusty's contraction of RLF, blindness and damage.

Air Shields filed third party action against Drs. Rothenberg and Doncaster alleging the doctors were well aware of the risks and benefits from the administration of oxygen of various concentrations and for various durations to a premature infant, and that their negligence caused the minor plaintiff's blindness and damage.

Trial was to a jury pertinent findings of which are summarized as follows:

3) Air Shields was negligent in failing to furnish with its incubators appropriate warnings relating to the risks of the giving of supplemental oxygen.

4) Such negligence was a proximate cause of Rusty Spears' blindness.

5) Southmore Hospital was negligent in its policies and procedures in 1970 regarding the administration of supplemental oxygen to premature infants.

6) Such negligence was a proximate cause of Rusty Spears' blindness.

9) Dr. Rothenberg was negligent in his diagnosis and/or medical care and treatment of Rusty Spears after his birth.

10) Such negligence was a proximate cause of the blindness of Rusty Spears.

11) Awarded $100,000. for special training and education for Rusty Spears in the future until age 18.

12) a) Awarded $100,000. for mental suffering and physical disfigurement in the past.

b) Awarded $900,000. for mental suffering and physical disfigurement in the future.

13) a) Awarded $500,000. for loss of future earnings.

b) Awarded $10,000. for loss of ability to care for and manage his own affairs in the past.

c) Awarded $250,000. for loss of ability to care for and manage his own affairs in the future.

The trial court disregarded the jury's answer of $100,000. for Rusty's special education on the basis such damages could only be recovered by the parent who was barred by limitations. The court further reduced the award ($1,760,000.) by 1/3 on the basis of the jury's findings of negligence against Dr. Rothenberg, and rendered judgment for plaintiff for $1,173,334. jointly and severally against Air Shields and Southmore. The judgment further set the fee of the Guardian Ad Litem, who was appointed by the court to represent Rusty, at $15,000. and taxed same as costs, and assessed all costs jointly and severally against Air Shields and Southmore.

Both Air Shields and Southmore Hospital appeal.

Air Shields' Appeal

Air Shields appeals on 67 points which we summarize as 7 principal contentions.

Contention 1 asserts there is no evidence and/or insufficient evidence to support the jury's answers to Issues 3 and 4, and that such answers are against the great weight and preponderance of the evidence.

Issues 3 and 4 found Air Shields negligent in failing to furnish with its incubators warnings relative to the risks of giving supplemental oxygen, and that such was a proximate cause of Rusty Spears' blindness.

The incubator was manufactured and sold to Southmore in 1968. The incubator provides an environment for a premature infant. It controls the temperature, the humidity, and permits oxygen to be either at room air concentrations (about 20%) or increased. The incubator has an oxygen limiter, which prevents the concentration of oxygen from exceeding 40% Unless a red flag device on the incubator is raised.

Rusty Spears was born April 27, a premature infant (28 to 32 weeks gestation instead of the normal 40 weeks), and weighed 2 pounds 3 ounces. The incubator and supplemental oxygen permit many premature infants to live who would otherwise die, but too much oxygen causes RLF and blindness in the infant. Formerly less than 40% Oxygen was believed safe, but in 1967 or 1968 Air Shields learned there was no safe level and that duration of exposure to oxygen as well as concentration was a factor in causing RLF. Air Shields provided a brochure containing instructions for the safe operation and use of its incubator to each purchaser, but nowhere in the instructions is there a reference to RLF or to the safety, or non safety, of any particular concentration of oxygen, or duration of exposure, nor was any warning placed on the incubator itself. Air Shields expected its brochure would be read by all nursing supervisors, attending physicians and all users of the incubator. There is evidence Air Shields knew that many users of its incubators believed oxygen concentrations of less than 40% Were safe and could be given routinely without clinical need. There is evidence that it is both feasible and appropriate for the manufacturer to provide, in its manual or on the machine, medical facts and information relating to the proper use of the machine, consistent with the medical facts as they were known, to insure the machine would not be used in a manner to produce RLF. There is evidence that RLF is usually caused by giving a premature infant oxygen; that excessive oxygen is a significant factor in causing RLF; that oxygen such as received by Rusty would be calculated to produce RLF; that Rusty's blindness was caused by exposure to oxygen; that Rusty's blindness was caused by the oxygen administered during the first days of his life.

And there is evidence a manufacturer is uniquely situated to appreciate the medical risks inherent in the use of its machine; that warnings on medical appliances can act as a reminder to the doctor or hospital; they can tell them something they do not know; or stimulate a further inquiry. Dr. Rothenberg testified when presented with a warning similar to one later given by Air Shields and similar to one proposed by Dr. Hyman: "Well I certainly wouldn't have ignored a message like that", and would have adhered to or at least looked into the matter further.

Every manufacturer has a duty to warn of dangers in the use of its product. Bristol-Myers Co. v. Gonzales, Tex., 561 S.W.2d 801; Crocker v. Winthrop Labs., Tex., 514 S.W.2d 429; Bituminous Cas. Corp. v. Black & Decker Mfg. Co., (Dallas, Tex.Civ.App.) NRE, 518 S.W.2d 868.

Proximate causation may be established by circumstantial evidence. Farley v. M M Cattle Co., Tex., 529 S.W.2d 751. The jury is the judge of the facts and circumstances proven and may draw reasonable inferences and deductions from the evidence. Lynch v. Ricketts, 158 Tex. 487, 314 S.W.2d 273. The question of proximate causation is one for the jury to determine from all the facts and circumstances proved, and broad latitude is allowed jurors to infer proximate cause from the circumstances surrounding an...